Killing Due Process in the War on Terror

From the October 2013 issue of Chronicles.

One striking feature of the U.S. Constitution is the number of procedural rights guaranteed to individuals accused of criminal behavior before they can be deprived of life, liberty, or property. The overall guarantee of due process of law contained in the Fifth and Fourteenth Amendments constitutes the basic foundation, but there are many other protections. The Fifth Amendment, for example, also specifies that no person “shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury,” except under certain circumstances in the Armed Forces.

The Sixth Amendment is perhaps even more central to the concept of due process, since it enshrines the right to a “speedy and public trial by an impartial jury.” Moreover, the accused must be informed “of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.” Finally, the Eighth Amendment bars “cruel and unusual punishments,” which is a barrier to using torture to extract information from suspects. In addition to such specific constitutional protections, there is the long-standing doctrine in Anglo-American law that one is presumed innocent until proven guilty.

Historically, those crucial rights have been most in jeopardy when the country is at war. The temptation to cut constitutional corners is greatest when the public confronts a frightening internal or external enemy. It is no coincidence that the greatest erosions or outright violations of due-process protections occurred during the Civil War and the two world wars. Once those conflicts ceased, though, both public opinion and the federal judiciary took steps to restore constitutional normality—although after World War II, some troubling legal precedents remained.

In the 12 years since the terrorist attacks on September 11, 2001, fundamental due-process rights have again been under siege, and the most recent assault is even more worrisome than its predecessors. Not only has governmental disdain for those rights equaled or exceeded the record in previous crises, but by its very nature a “War on Terror” has no discernible end. In other words, the rights diminished or eliminated are not likely to be restored in a postwar setting, because there may never be a postwar setting.

That is a key difference from the earlier episodes. During the Civil War, for example, the Lincoln administration detained accused Confederate sympathizers without trial, or used military tribunals to prosecute them. Indeed, those individuals accused of being involved in the successful plot to assassinate President Lincoln were tried and convicted in a military tribunal, even though the fighting had ceased and the civilian courts were operating in most areas of the country. But a year after the war, in Ex Parte Milligan, the U.S. Supreme Court rejected the executive branch’s promiscuous use of military tribunals, ruling that such procedures were unconstitutional if the other courts were operational.

The Court’s performance after World War II was less admirable, since it passively accepted the Roosevelt administration’s internment of Japanese-Americans, even though there were no trials or any other semblance of due process. But once the fighting ended, no one seriously argued that the government had the continuing power to engage in such conduct. Moreover, the financial compensation that Congress awarded the survivors and their families in the 1980’s was an implicit admission of government misconduct.

Following the September 11 attacks, the George W. Bush administration made especially bold assertions about the alleged extent of presidential authority to disregard legal and constitutional norms in waging the War on Terror. The administration based its arguments both on the president’s “inherent” power under the Constitution to protect the nation from foreign and domestic enemies and on the Authorization for the Use of Military Force, the measure that Congress passed the week following the September 11 attacks. The AUMF, the President and his advisors argued, granted the president extremely broad powers to prosecute the conflict, since it authorized him to “use all necessary and appropriate forces” against any nations, organizations, or individuals responsible for September 11.

The focus of the Bush administration’s argument was the claimed authority to detain “enemy combatants,” either aliens or U.S. citizens, without providing them access to U.S. civilian courts. That position was at least plausible when confined to “enemy combatants” seized outside the United States, if those individuals were not U.S. citizens. A March 2003 Justice Department memo prepared for the general counsel of the Department of Defense asserted bluntly that Fifth and Eighth Amendment protections did not extend to alien combatants captured or held outside the United States and, further, that due process of law did not apply to the conduct of war, nor to non-U.S. citizens. Moreover, protections from cruel and unusual punishment did not apply to military interrogations; such protections only covered defendants who were being prosecuted in a criminal court, “not wartime detainees . . . captured pursuant to the President’s power as Commander in Chief.”

It was one thing to argue that constitutional protections did not apply to alien fighters captured on a foreign battlefield, but the administration went far beyond that position. The President and his national security team argued that, given the nature of the terrorist threat, the entire planet was a potential battlefield. Consequently, alleged enemy combatants captured on U.S. soil were not entitled to those protections either. That view relied heavily on the 1942 Supreme Court decision in Ex Parte Quirin. The Quirin case involved an intercepted Nazi sabotage mission against targets in the United States. The conspirators included several who had U.S. citizenship. The Court ruled that the president had the authority to detain and try enemy combatants found to be in violation of the laws of war. Since the would-be saboteurs wore no uniforms, they were not considered prisoners of war but unlawful combatants who could be tried before military tribunals. And, in the most dubious, controversial aspect of the decision, the Court ruled that U.S. citizenship did not exempt a combatant from such tribunals.

The Bush administration extended the Quirin reasoning to cover not just an active, specific terrorist mission (as in Quirin) but even amorphous or embryonic terrorist plots. And, applying Quirin, the administration insisted that U.S. citizens accused of involvement in terrorist schemes were not entitled to due process and other constitutional rights.

The case of José Padilla represented the culmination of that thinking. Padilla, a U.S. citizen, apparently trained with Al Qaeda operatives in Afghanistan and subsequently was accused of plotting to create a “dirty bomb” using nuclear materials, with the intention of attacking U.S. targets. Federal agents intercepted him not on a foreign battlefield but at O’Hare International Airport in Chicago. Yet, instead of bringing charges against him in federal court, the government proceeded to hold him incommunicado at a military brig in South Carolina. After a series of murky, contradictory holdings at the appeals court level, and an equally murky Supreme Court decision, the administration belatedly prosecuted Padilla in the civilian court system—years after his initial capture. Bush administration officials, however, continued to maintain that the government could have lawfully held Padilla indefinitely without trial or, in the alternative, brought him before a military tribunal.

For a time, it looked as though the extraordinary assertions of presidential power against parties accused of involvement in terrorist activities might ebb with the end of the Bush presidency. Candidate Barack Obama was quite caustic about the Bush administration’s record:

This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. . . . No more ignoring the law when it is inconvenient. That is not who we are. And it is not necessary to defeat the terrorists. . . . Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary. This administration acts like violating civil liberties is the way to enhance our security.

Five years into the Obama presidency, those noble words are bitterly ironic. President Obama not only persisted in the practices of the Bush administration but adopted measures that make the Bush-era abuses seem tame. Whereas Bush and his advisors asserted the right to imprison accused parties, including U.S. citizens, indefinitely without trial, the Obama team asserted the right to execute accused individuals, including U.S. citizens, without trial or even any independent review. President Obama exhibits an alarmingly casual dismissal of the constitutional rights of American citizens. At a National Defense University speech in May 2013, he argued that, in a case involving an accused terrorist, “his citizenship should no more serve as a shield” from lethal drone strikes ordered by the president “than a sniper shooting down on an innocent crowd should be protected from a SWAT team.”

Attorney General Eric Holder offers the most comprehensive rationale for that approach. An operation using lethal force, targeted against an American citizen who is involved with Al Qaeda, and “who is actively engaged in planning to kill Americans, would be lawful,” Holder argued in 2012, in

at least the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States, second, capture is not feasible, and third, the operation would be conducted in a manner consistent with applicable law of war principles.

Holder’s bland assertion that the “U.S. government has determined” that the individual is guilty of terrorist plotting is a euphemism for the “president and his advisors have determined” guilt. The Obama administration has consistently sought to block any role for the judiciary in making that determination. Relatives of radical cleric Anwar al-Awlaki, a U.S. citizen ultimately killed by a drone strike in Yemen, who petitioned the courts to review the administration’s reasoning for targeting him, encountered stout opposition to revealing any of the evidence on which the targeting decision was based.

The attorney general also has an exceedingly broad view of what constitutes an “imminent threat” justifying a presidential edict ordering the execution of an American citizen. “The evaluation of whether an individual presents an ‘imminent threat,’” Holder states, “incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” On another occasion, Holder stressed that the president need not wait until some “theoretical end-stage of planning” for a terrorist attack before taking action against the alleged plotter, even if that individual is an American citizen. A Justice Department White Paper in February 2013 elaborated that point. “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Given such loose standards, the attorney general and his subordinates are implying that the president has a blank check to order the elimination of an accused individual whenever he determines that the person poses a danger to the nation. That is a truly frightening doctrine.

Nor is that authority confined to ordering attacks on U.S. citizens residing in overseas terrorist havens. In a reluctant response to questions posed by Sen. Rand Paul (R-KY) in March 2013, Holder conceded that there might be “an extraordinary circumstance in which it would be necessary and proper for the President to authorize the military to use lethal force within the territory of the United States.”

Too many officials now act as though the protections contained in the Constitution are luxuries to be dispensed with in times of trouble. Nothing could be more pernicious to the liberties of the American people. Those guarantees are procedural necessities that become even more relevant when the nation is under stress, for that is the setting in which gross abuses of power are most likely to take place.

Those who defend the asserted presidential “right” to imprison or execute accused terrorists implicitly embrace the view that accusation equals guilt. But that notion is both irrational and profoundly alien to America’s legal tradition. If mere accusation were sufficient to establish guilt, we would have no need for criminal trials regarding any offense. Bypassing those procedures, even for terrorism, threatens the entire fabric of justice.

One does not have to assume malice on the part of a president to be alarmed at the claims that the Bush and Obama administrations put forth. An honorable, well-meaning president is still a fallible human being, and his determination that an individual is guilty of terrorism can be mistaken. In recent years, there have been celebrated cases of people who have been wrongly convicted of murder and other terrible crimes even when all the constitutional procedural protections were in place. How much greater the danger becomes when the decision is in the hands of one elected official and his appointed advisors!

The Founding Fathers understood that the American people must not rely on the honor and good will of elected officials for their liberties. Tragically, Congress, the federal judiciary, and much of America’s opinion-shaping elite seem inclined to endorse, or at least to accept, the death of due process in the name of waging the War on Terror.